Protections for Expecting and New Mothers in the Workplace

Posted By
Mazaheri Law Firm

What can an employee who becomes pregnant expect from her employer? The
Family and Medical Leave Act (FMLA) protects her job if she needs to take
leave due to her pregnancy, the Pregnancy Discrimination Act (PDA) protects
her from being discriminated against, and the Fair Labor Standards Act
(FLSA) protects her ability to breastfeed at work.

The FMLA protects employees who need to take leave due to a serious medical
condition. This means that upon returning to work, the employee who took
FMLA leave must be allowed to return to the same or equivalent job as
before. Pregnancy is included as a serious medical condition, and leave
can be taken for both before and after the birth. This leave is unpaid,
although an employer can require the employee to use up paid leave during
this time such as vacation and sick days. Therefore, the FMLA protects
pregnant individuals who decide to take time off from work both before
birth and after the birth during the bonding period. The total time off
cannot exceed 12 weeks, and the employee and employer must be covered
by the provisions of the act.

The PDA prevents pregnant employees or potential employees from being discriminated
against due to their pregnancy. However, this protection only requires
similar treatment to other employees with temporary disability. So if
an employer would help a temporarily disabled employee by providing accommodations
such as modified duties and lighter task loads, then the employer must
do the same for pregnant employees.

The FLSA, recently amended by the Affordable Care Act (aka "Health
Care Reform" or "Obamacare") to include Section 207(r),
requires employers to allow unpaid break time "for an employee to
express breast milk for her nursing child for 1 year after the child's
birth each time such employee has need to express the milk," and
to provide "a place, other than a bathroom, that is shielded from
view and free from intrusion from coworkers and the public, which may
be used by an employee to express breast milk." This requirement
applies to ALL employers except those who can articulate an undue hardship
in complying. However this protection may not apply if the employee is
an exempt employee since the FLSA wouldn't apply in general. Further,
the requirements of Section 207(r) may not provide much protection to
nonexempt employees anyways since the enforcement mechanism for Section
207(r) is
apparently lacking. Federal law also provides that a woman may breastfeed "in a Federal
building or on Federal property, if the woman and her child are otherwise
authorized to be present at the location."

The majority of states do not have laws providing additional protections
to employees for breastfeeding. In Oklahoma, breastfeeding is not considered
a crime (i.e. indecent exposure), and mothers who are breastfeeding can
be exempt from jury duty, but that's all the protection Oklahoma law
currently provides for breastfeeding. 63 O.S. 1-234.1 (not a crime); 38
O.S. 28 (exempt from jury duty). The Oklahoma Legislature has shown it
approves of accommodating breastfeeding mothers, but that law only provides
that employers
may accommodate breastfeeding mothers. Alas, this provision requires and penalizes
nothing. 40 O.S. 435. The same provision also has an undue hardship exception,
but this exception makes no sense to have included in the law since the
provision is permissive. In any event, even though Oklahoma does not require
employers to accommodate breastfeeding, employers must still follow federal
law and accommodate breastfeeding in the workplace.